MUTEMA J: The plaintiff issued
summons against the defendants claiming the following:
(a) The
setting aside of the agreement of sale between the first defendant and second defendant;
(b) An
order directing the third defendant to transfer the rights, title and interest
in Flat 196 Block 40 Odzi Flats into the plaintiff's name; and
(c) Costs
of suit against the first and second defendants jointly and severally, the one
paying the other to be absolved.
The
basis of the claim is briefly this: in about October, 2005 the second defendant
offered to sell the Flat in question to plaintiff. After being shown the
agreement of sale of the Flat between the second defendant and third defendant
and proof that the second defendant had fully paid for the flat, the plaintiff
accepted the offer. On 2 November, 2005 the parties entered into an agreement
of sale and on 3 November, 2005 the full purchase price was paid and second
defendant acknowledged receipt thereof. Later, second defendant advertised the
same flat for sale but was thwarted by the plaintiff's 2nd wife who
intervened via court actions. Second defendant later misrepresented to the
plaintiff's 1st wife that he was a joint owner of the flat and was
willing to sell it and share the proceeds equally with the 1st wife.
At the time, the plaintiff was in remand prison. Second defendant purportedly
sold the flat to first defendant, fraudulently misrepresenting that the
plaintiff had signed the sale agreement yet the plaintiff was in prison at the
time. All the documents used to facilitate that sale were forged and thus,
there was no sale between first defendant and the plaintiff.
The first and second defendants
denied the plaintiff's averments challenging him to prove them. First defendant
counter claimed for an order ejecting the plaintiff and all those claiming a
right of occupation through him from Flat 196 Block 40 Odzi Flats, payment of
$400 per month from 1 February, 2009 to date of eviction for unlawful
occupation of her flat and costs of suit at the prevailing Law Society Tariff.
Plaintiff adduced evidence from two
witnesses. Daniel Chawira Madziva, a young brother to the late Wilson Madziva
gave the following evidence:
He knows first and second defendants
as people who sold each other a flat in Eastlea. As the plaintiff was in prison
at the time he signed the documents relating to the sale on behalf of the
plaintiff. Prior to that, in about 2000, second defendant had been offered the
flat by third defendant for purchase but second defendant had not enough money
to buy it. Second defendant had then asked the plaintiff for money to pay off
the third defendant and the two would then have a 50-50 “share holding” in the
flat. This was done and the plaintiff put his second wife Evelyn Mashura into
the flat to share with the second defendant from 2002 to 2007. Plaintiff in
2007 told him that he had bought out second defendant and documents pertaining
thereto were with his 3rd wife Magret Mtetwa.
Regarding the sale between first and
second defendants, second defendant came to him at his place of employ, viz
Vercham Real Estate saying he was retiring and wanted to sell the flat and give
him the plaintiff's 50% share. He advised second defendant to go and see the
plaintiff at prison. Second defendant later came back saying he had seen the
plaintiff who had given his green light to the sale and he (Daniel) should sign
the sale agreement. He called Mary Zivurawa, the plaintiff's 1st
wife who was not aware that the plaintiff had such a flat, and told her that
what second defendant said was what was to be done. She said they should sell
the flat. He signed documents pertaining to the sale of the flat on behalf of
the plaintiff. He did not know then that the plaintiff had not given his nod to
have the flat sold. He also signed an affidavit on behalf of the plaintiff
because second defendant had told him that the plaintiff had said he should
sign all the documents on his behalf.
He is not aware whether the
plaintiff's 1st wife was paid half the purchase price because he was
not present when she received it. When the plaintiff was released from remand
prison on bail and learnt of the sale of the flat, a dispute ensued.
Plaintiff's other witness was Mary
Zivurawa. She told the court that the plaintiff was her husband. She came to
know second defendant in February, 2007 when he came to her house. At the time
her husband was in prison. Second defendant introduced himself to her saying he
had been directed to her by Daniel Madziva – the first witness. Second
defendant told her that the plaintiff had a house in Eastlea. She was unaware
of the fact. He suggested that they should meet the next day to discuss issues
pertaining to the plaintiff's arrest.
Next day second defendant, Daniel
and herself met. Second defendant indicated that he had an idea that would
assist the plaintiff to be released from remand prison. He said they could sell
the house and he would give her half of the price while he took the other half.
He explained that the plaintiff had given him some money used to buy the house
with the two agreeing to share proceeds 50-50 on selling it. He said he had
seen the plaintiff at remand prison who had given the go ahead to sell the
house.
Regarding sale of the house to first
defendant she signed the agreement at second defendant's behest but after
signing it she was not given anything. She had not been given the Z$80 million
when she signed the document that alleges she received the amount. She signed
it expecting second defendant to call her later for the money but he never did.
She was aware of second defendant's
intention to sell the flat in January and an interdict was sought by the
plaintiff's 2nd wife who obtained a provisional order. Plaintiff
later withdrew that matter following his 2nd wife's withdrawal of
the same in November, 2009.
That was the plaintiff's case.
The defendants led evidence from
three witnesses. First defendant Caroline Kunaka told the court this version of
events:
She resides at 8 Pineliegh Close in
Hatfield, Harare and is self- employed. She had a house in Ruwa which she sold
intending to purchase a bigger residence to reside at with her children. At the
time she was staying in Eastlea. When she saw an advertisement in the newspaper
for sale of the flat in question by Vercham Real Estate she went to the estate
agents and saw Daniel Chidziva the plaintiff's 1st witness – who was
the sales agent.
She was in the company of Mr
Chimbare of Fremus Executors. She was told to wait for the property owners who
arrived shortly thereafter in the person of second defendant and his legal
practitioner. She informed the parties present that she wanted to first verify
with the Ministry of Housing who the owner of the flat was. She went to the
Ministry offices where it was confirmed that second defendant was the owner of
the flat, and that the property was unencumbered. Back at Vercham, Daniel said
all was in order. Second defendant said he had a document that needed
clarification for he had borrowed some money from the plaintiff. Plaintiff was
then in prison. Daniel said there was no big deal as he was the plaintiff's
young brother, was the one who had put the advertisement in the paper and that
he would visit the plaintiff at prison that afternoon and would take the
document there with him so that the plaintiff would sign it. She asked who the
payee would be and Daniel said the plaintiff's wife who then arrived. This was
the second witness for the plaintiff Mary Zivurawa. Daniel said would phone her
the next day after solving whatever needed to be solved. The agreement of sale
exh 3, was reduced to writing by Vercham Real Estate. The following morning
Daniel phoned her to come as everything was now in order. She went and found
also the second defendant, Chimbare and Mary Zivurawa and they went to Fremus
offices where Daniel produced the document which he said the plaintiff had
signed.
After
all had been done she produced her suit case containing Z$160 million in two
batches of Z$80 million each. Second defendant took his share of Z$80 million
and Mary Zivurawa also took hers whilst all were watching. They were then given
the agreement of sale (pp1-3 of exh 3) and Mary Zivurawa signed her
acknowledgement of receipt (p 4 of exh 3) and the second defendant signed his
(p 5 of exh 3). Daniel and Mary then put Mary's share in a small bag.
She is aware of proceedings in case
number 1471/07 instituted against her and 3 others by Evelyn Mashura and the
plaintiff wherein they wanted an order declaring them to have the 1st
option to buy the flat in question. The two later withdrew the application.
In her counter claim she prayed for
the eviction of all those claiming occupation of the flat through the plaintiff
because the flat is rightfully hers, having purchased it for cash. Despite
buying the flat she has never set foot in it. She is also claiming holding over
damages of $400 per month. She was surprised by Mary Zivurawa's sudden about
turn denying receiving plaintiff's share of the purchase price yet at the time
she was grateful for the money saying it would pay the plaintiff's bail and
school fees for her children.
Bobby Samasuwo Mangodza told the
court that he came to know Wilson Madziva when he gave the latter as estate
agent, the mandate to sell his stand in Hillside. He came to know the first
defendant when he sold her the flat in contention. He denied sever concluding
an agreement of sale of the flat with the plaintiff let alone receiving any
purchase price for it from the plaintiff.
He joined the Local Government Pay
for your house scheme on 21 November, 1994 and was paying monthly subscription
of $650 up to 23 February, 2002 when he was informed that he would get his
house but more money was required. The required balance was $224000 and this is
the amount that he borrowed from the plaintiff. After paying off that balance
he was given the flat in question as his. He had agreed with the plaintiff that
the $224000 was a loan to be paid back. Plaintiff was in the business of money
lending. After two weeks he went to repay the loan to the plaintiff. He had got
the money from National Railways of Zimbabwe as the second portion of his
pension.
It took him long until November to
see the plaintiff as he would always find only Daniel in the office. Daniel had
a document stating that the plaintiff would get 50% share if he sold the flat.
Initially he refused to sign it as it was not what they had agreed on when he
borrowed the money. He only signed that document in November when he saw the
plaintiff.
Thereafter he commenced residing at
the flat alone. In April, 2004 the plaintiff brought Evelyn Mashura saying she
was his 2nd wife and asked for temporary accommodation for her. Her
stay, however, turned out not to be temporary. Feeling uncomfortable staying
with her, he decided to sell the flat. He visited the plaintiff who was in
prison and advised him of his intention. Plaintiff needed legal fees and agreed
with the idea to sell and that his 50% share be paid to his legal practitioners
Musekiwa and Associates. Mashura, however, was averse to the sale and
challenged it. Plaintiff then directed him to liase with Daniel at Vercham Real
Estate to look for a buyer. He also directed that his 50% share should no
longer be paid to Musekiwa and Associates but to his 1st wife.
He went to Vercham Real Estate and
told Daniel about the issue. Daniel said he needed to verify it with the
plaintiff first. He asked Daniel for the plaintiff's 1st wife's
address and he was given and went and saw her. By arrangement, the plaintiff's
1st wife, Daniel, himself and his legal practitioner Mr Mushambadope
met at Chicken Inn at Construction House where Daniel advised that he had
verified with the plaintiff that the flat be sold. Mushambadope drafted a
memorandum of understanding indicating that the plaintiff had agreed that the
flat be sold. This document was taken to the plaintiff for signature by
Mushambadope.
Subsequently he entered into a sale
agreement with the first defendant for the flat. The purchase price of Z$160
million was paid and the plaintiff's 1st wife signed an
acknowledgement of receipt and got the Z$80 million representing the
plaintiff's share. For her to allege that she did not receive the money is a
blue lie. He denied forging any document to facilitate the sale of the flat to
the first defendant.
Caleb Hatizvigoni Mucheche was the
defendants' last witness. His testimony was this:
He is a legal practitioner, part
time lecturer with the University of Zimbabwe and also an arbitrator.
He came to know the first defendant
on 10 April, 2007 when Mr Chimbare of Fremus Executors phoned him advising that
one Mrs Madziva needed services of a Commissioner of Oaths. He went there and
was handed a draft affidavit in the name of Wilson Madziva. Wilson Madziva was
at Harare Remand Prison. He had been briefed above the issue concerning the
flat in question. When he got to the prison and was taken to where Wilson Madziva
was, it was clear that Wilson was expecting him. He gave him the draft
affidavit and he carefully went through it nodding his head. Madziva chronicled
to him the circumstances surrounding the subject matter and he had no kind
words for Evelyn Mashura whom he described as a gold digger.
He asked Madziva if he swore that the
contents of the affidavit were nothing else but the truth and if so he should
raise his right hand and say “so help me God” and he complied and proceeded to
append his signature. Thereafter he also appended his signature as the
commissioner of oaths and endorsed his stamp. He confirmed that p 7 of exh 3 is
the affidavit Madziva signed on 10 April, 2007 at Harare Remand Prison. He does
not know any Daniel Madziva and when he went to the remand prison he was under
no optical illusion whatsoever regarding what he was required to do. After his
evidence, the defendants closed their case.
This was the
evidence adduced before me in this case. The issues that were referred to trial
for my resolution are five, viz:
- Whether
the plaintiff purchased the property in question from the second
defendant;
- Whether
the agreement of sale between the first and second defendants is valid;
- Whether
the first defendant is entitled to evict the plaintiff from the flat in
question and all those claiming a right of occupation through him;
- Whether
the first defendant is entitled to holding over damages; and
- If
so, the quantum thereof.
I
now proceed to deal with those issues seriatim.
Whether
the plaintiff purchased the property in question from the second defendant
On this issue
the evidence of the second defendant is clear and straight forward while that
of the plaintiff rings hollow. If anything the plaintiff, (may his soul rest in
peace), was a crook who after lending the second defendant the Z$224 000-00 to
top up the balance needed by the third defendant, subsequently shifted goal
posts and coerced the second defendant to agree to the bizarre arrangement that
if the flat were ever sold the two of them would share the proceeds on a 50 –
50 basis. That the plaintiff purchased the flat from the second defendant on 2
November, 2005 and paid for it on 3 November, 2005 with the second defendant
acknowledging receipt of the purchase price in writing constitute not only bald
allegations but the mendacity thereof has been exposed.
Both witnesses
for the plaintiff had no first hand knowledge of the alleged purchase. They
both said they were told about it by the plaintiff after his release from
remand prison in June, 2007. Apart from the hearsay complexion, one wonders why
from November, 2005 to June, 2007 the plaintiff was keeping the alleged
purchase of the flat under wraps. In para 7 of his declaration, the plaintiff
avers that he purchased the flat on 2 November, 2005 in terms of a written
agreement of sale and paid the full purchase price on 3 November, 2005 and the
second defendant accepted and acknowledged receipt thereof, No such agreement
of sale was produced in evidence, no mention of the amount of the purchase
price allegedly paid by the plaintiff to the second defendant and no
acknowledgment of receipt of the payment by the second defendant was produced.
All this goes to show that the alleged purchase is a sham which must be
dismissed as such. That the documents were taken by the plaintiff's third wife,
one Margret Mtetwa is also hearsay by Daniel and it does not detract from the
alleged purchase being a sham. The court was not appraised of Mtetwa's
whereabouts and why she was not called to come and produce the alleged documents.
Perhaps calling
Mtetwa to produce the alleged documents was not at all necessary because there
never was such purchase. This conclusion is fortified firstly by exh 2, the
provisional order dated 12 January, 2007 in case number HC 105/07 in which the
plaintiff and Evelyn Mashura were granted an interdict against the second
defendant and Keystone Real Estate from selling the applicants' half share in
flat 4 Block 40 Odzi Flats and secondly by exh 4, the order the plaintiff and
Mashura were seeking in case number HC 1471/07 against the first and second
defendants and two others in March, 2007, which was later withdrawn wherein
they sought inter alia that they “be
given the option to be the first purchasers or to buy out” the second
defendant. The question is how could the plaintiff, who alleges to have
purchased the flat in toto from the
second defendant in November, 2005 claim in 2007 to still own a half share in
the same flat or to be given the option to be the first purchaser or to buy out
the second defendant? This is where the entire case for the plaintiff crumbles
and I am constrained to castigate the plaintiff's counsel for unprofessional
conduct in bringing such a disabled suit to court when it was clear as day
follows night that the case had no leg to stand on! The inevitable conclusion I
reach on this issue is that the plaintiff never purchased the property in
question from the second defendant.
Whether
the agreement between the first and second defendants is valid
On this issue I
have no hesitation whatsoever in finding that the agreement is valid. Firstly
the second defendant, as owner of the property did not require the plaintiff's
consent to sell the flat. Secondly, out of sheer courtesy due to the fact that
the second defendant had reluctantly agreed to share the proceeds of the sale
of the flat with the plaintiff on a 50 – 50 basis in the event of its sale, the
second defendant did inform the plaintiff of his intention to sell it and the
plaintiff gave his blessings. The second defendant's version on the aspect is
corroborated by the probabilities as well as the relevant documentary evidence.
Page 4 of exh 3 constitutes prima facie
conclusive evidence that Mary Zivurawa received the plaintiff's half share of
the proceeds from the sale of the flat as per the agreement between the
plaintiff and the second defendant. Mary Zivurawa is a form 2 dropout and
urbanised. She is therefore not an illiterate woman and this is a proper case
to invoke the doctrine of caveat
subscriptor against her. I also believe the first and second defendants who
witnessed her signing the acknowledgement of receipt of the Z$80 million
dollars and disbelieve her and Daniel when they denied that the amount was
received. Mary and Daniel are family and I could discern from their demeanour
that they had contrived to strive to have the flat as part of the plaintiff's
deceased estate as this is the plaintiff's dependants' sole abode.
Also, p 7 of exh
3 buttresses the second defendant's version. This is an affidavit deposed to by
the plaintiff while in remand prison after Mashura had refused to vacate the
flat in question. Mr Mucheche who commissioned the affidavit gave clear and
straight forward evidence that it was deposed to by the plaintiff and no other
person. I have no reason to disbelieve him. Daniel who claimed to have signed
that affidavit was clearly lying. One needs no questioned document examiner to
compare the signature of the deponent on that affidavit with the one on exh 1
to safely conclude that it belongs to Wilson Madziva. It is strange that in exh
1 the plaintiff was, a month later, reprobating what he had stated on p 7 of
exh 3. One can only conclude that the plaintiff was a person who had no regard
for truth. In the result the first and second defendants have proven that
agreement of sale they concluded is valid.
Whether
the first defendant is entitled to evict the plaintiff from the flat in
question and all those claiming a right of occupation through him
Having made the
findings that the plaintiff never purchased the flat from the second defendant
and that the first defendant is the bona
fide purchaser and owner of the flat, it inevitably follows that the
plaintiff and all those claiming a right of occupation of the flat through him
have no legal entitlement to occupy the premises. Over and above the foregoing,
it is pertinent to note that the plaintiff did not file any plea to the first
defendant's counter claim for eviction and holding over damages. The court can
still enter default judgment for the eviction.
Whether
the first defendant is entitled to holding over damages
This was claimed
in the counter claim and like for the claim for eviction supra, the plaintiff failed to file any plea thereto with the
result that the court can still enter default judgment in favour of the first
defendant on that basis. Over and above that, it is not in dispute that ever
since the first defendant purchased the flat in question she has never enjoyed
any usufruct attached or attendant
thereto. It is the plaintiff who has and unlawfully so thereby occasioning the
first defendant to suffer damages. The first defendant is accordingly entitled
to holding over damages caused by the plaintiff or those claiming a right of
occupation through him.
The
quantum of the holding over damages
In her counter
claim the first defendant pegged the damages at US$400 per month. Exhibit 7
produced by consent done by Knight Frank Zimbabwe estimates the rentals to be
between US$500-$600 per month. The first defendant did not seek to amend the
amount. It therefore behoves me to exercise my discretion as regards the fair
quantum. I consider that since Knight Frank could not be allowed access into
the flat by the occupiers and therefore were not able to do a physical
inspection of the inside, the $400 initially claimed would be in order.
In the result I
make the following order:
- The
plaintiff's claim be and is hereby dismissed in its entirety.
- Judgment
be and is hereby entered for the first defendant against the plaintiff as
follows:
(a) An
order ejecting the plaintiff from Flat No. 196 Block 40, Odzi Flats, Eastlea,
Harare and all those claiming a right of occupation of the said flat through
him;
(b) Payment
of the sum of US$400-00 damages per month from 1 February, 2009 for unlawful
occupation to date of vacation; and
(c) Costs
of suit at the scale of legal practitioner and client.
J
Mambara & Partners, plaintiff's legal practitioners
Debwe & Partners, 1st and 2nd defendants' legal practitioners
